Gujarat High Court

United India Insurance Co.Ltd vs Babulal Pannalal Sethiya on 20 October, 2023

Bench: Gita Gopi

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     C/FA/4660/2007                                  JUDGMENT DATED: 20/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 4660 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                        UNITED INDIA INSURANCE CO.LTD.
                                     Versus
                      BABULAL PANNALAL SETHIYA & 5 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 6
NOTICE ISSUED BY GOVT. GAZETTE for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3,5
RULE UNSERVED for the Defendant(s) No. 4
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 20/10/2023

                                ORAL JUDGMENT

1. Heard the learned advocates appearing for the

respective parties. Though served, none has

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appeared on behalf of respondents no.1 and 2.

2. The insurance company has challenged the

judgment and award dated 12.2.2007 passed in

MACP no.137/2003 which was filed under Section

166 of the Motor Vehicles Act, 1988 on the

ground that the multiplier adopted is

erroneous and no cogent evidence has been

produced to consider the income.

3. As per the facts of the case, son of the

claimants on 14.1.2003 at about 15.00 hrs. was

traveling with his friend Parsottam @ Vijay

Premraj Rajput on motorcycle bearing

registration no. GJ-5 BD-5117 as a pillion

rider and was going from Vadodara to Pavagadh

and at Narmada chokdi on National Highway

no.8, Bharuch, a trailer bearing registration

no. RJ-14-1-G-7661 came from the opposite

direction in a rash and negligent manner and

dashed with the motorcycle and because of the

injury, he died on the spot.

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4. As per the claimants, their son was aged about

24 and was doing a regular job at Ginza

Industries Ltd. and was drawing a salary of

Rs.4,500/- and stated that there would have

been rise in prospective income of Rs.9,000/-

to Rs.10,000/- per month.

5. Mr. Mazmudar submitted that the income has not

been proved by way of any cogent evidence to

even consider the claim of the claimants and

the multiplier ought to have been 18 since the

age of the deceased was 24 years. Mr. Mazmudar

has submitted that the negligence which has

been attributed is not in accordance to the

evidence on record.

6. In line with the arguments, Ms. Pathak learned

advocate for the respondent-insurance company

further submitted that the learned Tribunal

has assessed the evidence to lay down the

liability and thus, submitted that the

observation is not in accordance to the

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evidence on record. Ms. Pathak has submitted

that the proportion of liability laid down,

negligence attributed is not in accordance to

the evidence on record.

7. The learned Tribunal has considered income of

Rs.4,500/- by relying upon the income

certificate at Exh.57. The salary slip of last

3 years were produced on record at Exh.61.

Hence, the income has been supported by

necessary documentary evidence which requires

no interference of this Court. Thus, the

income considered as Rs.4,500/- per month is

as per the evidence on record.

8. The deceased was aged 24 years at the time of

his death. Age is supported by the postmortem

note as well as the salary slip. Thus, as per

the decision in the case of Sarla Verma Vs.

Delhi Transport Corporation & Anr., (2009) 6

SCC 121, multiplier would be 18 and relying

upon the judgment in the case of National

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Insurance Company Limited Vs. Pranay Sethi &

Ors. reported in (2017) 16 SCC 680, the

deceased would be entitled to 40% prospective

rise in income. However, since being

unmarried, half of the income would be

deducted for his personal expenses. Hence, the

monthly dependency would come to Rs.3,150/-

(Rs.4,500/- + 40% Rs.1,800/- = Rs.6,300/- -

50%). Considering the annual dependency with

multiplier of 18, total amount would come to

Rs.6,80,400/-.

9. In the case of Magma General Insurance Company

Limited Vs. Nanu Ram alias Chuhru Ram & Ors.,

reported in (2018) 18 SCC 130, it has been

observed as under:-

"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.

In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental

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consortium', and 'filial consortium'.

The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family.

With respect to a spouse, it would include sexual relations with the deceased spouse. (Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co- operation, affection, and aid of the other in every conjugal relation." BLACK'S LAW DICTIONARY (5th ed. 1979)

Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."

Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.

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Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.

The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act."

10. The claimants, thus, would be entitled for

consortium money of Rs.40,000/- per head.

Thus, in total the claimants are entitled to

Rs.80,000/- under the head of loss of

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consortium. As per the decision in the case of

Pranay Sethi (supra), an amount of Rs.15,000/-

is granted under the head of loss to estate

and an amount of Rs.15,000/- is granted

towards funeral expenses. Thus, the amount to

be granted under various heads would be as

under:-

Loss of dependency Rs.6,80,400/- Loss of consortium Rs. 80,000/-

      Loss of estate                                       Rs.       15,000/-
      Funeral expenses                                     Rs.       15,000/-
      Total                                                Rs.7,90,400/-



11. The       learned      Tribunal         having     considered               the

     evidence        on     record          has    observed             greater

negligence on the part of the driver of the

trailer, but having considered the accident

being taken place in the middle of the road

and the negligence of the trailer-driver was

found to be in excess as the motorcycle was

dragged for about 8 to 10 ft. and thus,

considering the same, the negligence of the

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motorcyclist was considered as 20%, while

driver of trailer was considered as 80%. The